Calcutta High Court (Appellete Side)
Sg vs The State Of West Bengal & Ors on 21 September, 2023
MAT 1051 of 2023
Item- CAN 1 of 2023
21-09-2023
SL-1.
Sri Jitendra Nath Biswas
Ct. 8
sg Versus
The State of West Bengal & Ors.
Mr. Tapash Kr. Bhattacharya, Adv.
Mr. Aviroop Bhattacharya, Adv.
...for the Appellant.
Mr. Rajarshi Basu, Adv.
Mrs. Tapati Samanta, Adv.
...for the State.
Mrs. Koyeli Bhattacharyya, Adv.
...for the W.B.B.S.E.
Mr. Madhu Jana, Adv.
...for the Respondent Nos.5 and 6.
1. By consent of the parties, the appeal and the application are
heard together and disposed of by this common order.
2. The appeal is arising out of an order dated 16th May, 2023
passed in connection with a writ petition in which the order
of dismissal of the writ petitioner dated 4 th November, 2013
was challenged.
3. The learned Single Judge, upon arriving at a finding that
there has serious breach of natural justice in the second stage
of disciplinary proceeding, namely, that the petitioner was
served with second show cause notice along with enquiry
report issued by the Secretary of the Managing Committee of
the School without giving an opportunity to the petitioner to
reply to the findings of the Inquiry Officer, set aside the
second show cause notice and the approval of the Board with
regard to first and second stage of disciplinary proceedings
in terms of Rule 28(8) of the Management of Recognised
Non-Government Institutions (Aided and Un-Aided) Rules,
1969.
4. The appellant was served with the letter of dismissal from
service on 4th November, 2013 based on the inquiry report
and without giving an opportunity to reply to the adverse
findings of the Inquiry Officer and without issuing any
second show case notice. It is elementary that the delinquent
should be given opportunity to deal with the inquiry report
and the second show cause notice in justification of his claim
that he is innocent of all charges.
5. Admittedly, this procedure was not followed. The Board has
completely overlooked the serious procedural lapses and
accepted the order of dismissal. The letter of approval was,
accordingly, set aside along with the order of dismissal of the
Managing Committee with a direction upon the School
Authority to decide as to whether there is a necessity to
conclude the proceeding initiated against the petitioner and if
it is in the affirmative, to issue second show cause notice
indicating proposed punishment. This order would have been
perfectly justified provided the 1969 Management Rules was
in vogue at the time when the writ petitioner was decided.
6. The learned Single Judge was not aware of the changes that
had taken placed in the meantime as would be reflected from
the order as direction was given to the school authorities to
obtain approval in terms of the 1969 Rules from the Board
after receiving the reply to the inquiry report and the decision
taken thereafter by the school authority.
7. Admittedly, the State respondents or the Council did not
bring it to the attention of the learned Single Judge that the
writ petitioner had retired from service on 30th April, 2014.
Thereafter the question arises as to whether in the absence of
any Rule permitting continuation of disciplinary proceeding
fresh direction can be given to the school.
8. This aspect of the matter also was not considered by the
learned Single Judge.
9. Mrs. Koyeli Bhattacharyya, learned Counsel for the West
Bengal Board of Secondary Education has submitted that in
view of coming into force of the West Bengal Board of
Secondary (Appointment, Confirmation, Conduct and
Discipline of Teachers and Non-Teaching Staff) Rules, 2018,
disciplinary authority would now consists of an officer of the
Board not below the rank of Deputy Secretary to the Board
in terms of Rule 2(h) of the 2018 Rules. The disciplinary
authority earlier was the Managing Committee and by reason
of 2018 Rules, the Board is now the disciplinary authority.
Similarly, the inquiry authority would be an authority
appointed by the disciplinary authority not below the rank of
District Inspector of Schools and Additional District
Inspector of Schools for the purpose of causing an inquiry
into the charges against the teaching and non-teaching staff
falls under the said Rules.
10. In the instant case, inquiry was conducted on the basis of the
approval obtained from the Board under the 1969 Rules.
However, due to flagrant violation of the principles of
natural justice, the order of dismissal being approved by the
Board mechanically without noticing the serious lapse was
set aside.
11. In view of the decision of coordinate Bench in Durgadas
Mukhopadhyay vs. The State of West Bengal & Ors.
reported in 2007 (4) CHN 382 concerning issue similar to
the issue raised in the writ petition the fresh proceeding
cannot be initiated or continued. The coordinate Bench held
that if a teacher is retired, there is no question of removal or
dismissal after retirement and at the same time, there is no
scope of obtaining prior permission or approval from the
Board for such removal or dismissal after retirement in terms
of Rule 28(8) of the 1969 Rules. Similarly, Sub-Rule (8a) of
Rule 28 of 1969 Rules was considered in paragraph 7 of the
judgment in which it is stated that having regard to the nature
of punishment that can be inflicted after retirement, none of
the three said punishments like, removal or dismissal or
stoppage of increment or reduction of pay, could not be
passed. The said judgement has clearly indicated that
continuation of disciplinary proceeding after retirement is
not permissible.
12. However, we must add that it depends upon the service
Rules governing the service condition of an employee. There
is a concept of deemed continuation of employment for the
purpose of initiation or continuation of disciplinary
proceeding and in some service Rules, provisions have been
made and on the basis of such Rules, disciplinary
proceedings can be allowed to be continued.
13. We do not find any saving clause in the 2018 Rules where
similar power was conferred for continuation of disciplinary
proceeding that may have abated by reason of retirement of
an employee. The only saving power would be Rule 5 sub-
Rule (3) of the second proviso which reads "provided
however that in case of retired teaching and non-teaching
staff, disciplinary proceeding may, with the approval of the
State Government, be instituted within three years from the
date of retirement, if the misconduct becomes known to the
Board after retirement". However, the said proviso is not
applicable in the present case.
14. In view of absence of any power of Managing Committee to
implement the order passed by the learned Single Judge, the
direction for considering the representation of the petitioner
against the inquiry report and the second show cause notice,
if the school authority proposed to issue, also could not and
does not arise.
15. In view thereof, the direction passed by the learned Single
Judge for continuation of the disciplinary proceeding for the
limited purpose of imposition of punishment if proposed by
the school authority on consideration of the representation of
the writ petitioner is set aside.
16. Moreover, it appears that the writ petitioner was exonerated
by the first charge forming the charge-sheet in CRA 14 of
2011 (Jitendranath Biswas vs. State of West Bengal) on 6 th
March, 2020.
17. In view thereof, retiral benefits admissible to the writ
petitioner may be released subject to compliance of all
formalities within three months from the date of submission
of all required papers.
18. The school authorities are directed to comply with the
direction forthwith.
19. The appeal and the application are disposed of accordingly.
20. Urgent photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance of all required
formalities.
(Prasenjit Biswas, J.) (Soumen Sen, J.)
